I. Introduction: History & Background

California has a reporter’s privilege embodied both in Article I, § 2(b) of the California Constitution and in California Evidence Code § 1070. The California Supreme Court has interpreted these “shield laws” to give broad protection to reporters. California courts also have recognized a reporter’s privilege under the First Amendment. In addition, in response to a number of highly-publicized reporter subpoenas, the California Legislature has adopted procedural mechanisms under state statutory law designed to confer greater protection for reporters.

However, there are limits on the protection of California’s state shield laws. Because the state laws only prevent a finding of contempt, they provide minimal protection to reporters who are parties to litigation. Moreover, although California’s state shield laws are absolute in civil cases where a party seeks information from a non-party reporter, and in criminal cases where the prosecutor is seeking the information, in criminal cases the defendant’s right to a fair trial must be balanced against the reporter’s rights.

II. Authority for and source of the right

A. Shield law statute

California Evidence Code § 1070 currently provides as follows:

§ 1070. Newsmen’s Privilege—Unpublished Information.

(a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

(b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

(c) As used in this section, “unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.

Cal. Evid. Code § 1070.

California’s shield law was first adopted in 1935 as Code of Civil Procedure § 1881. Delaney v. Superior Court, 50 Cal. 3d 785, 795-96, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). At that time, it provided an immunity from contempt for a newspaper employee’s refusal to disclose source information, but it did not explicitly protect other unpublished information or other forms of media. Id. Amendments added employees of radio and television stations, press associations, and wire services to the shield law’s protection. Id. In 1965, the shield law was transferred to Evidence Code § 1070. Id. In 1972, apparently in response to the United States Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972) (which held that a newsperson did not have a qualified privilege against disclosing source information to a grand jury), the California Legislature amended Section 1070 to protect “unpublished information,” in addition to protecting the identity of confidential sources. Id.

The reporter’s privilege in the California Evidence Code is essentially identical to the provision of the California Constitution that was adopted in 1980, discussed below. Consequently, the cases applying the reporter’s privilege typically rely on the Constitution for support, rather than the statute.

(b) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

Nor shall a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

As used in this subdivision, “unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.

Cal. Const. Art. I, § 2(b). This provision was enacted by an overwhelming majority of California voters (4,340,108 to 1,575,486). The pamphlet that accompanied this proposed amendment explained:

The free flow of information to the public is one of the most fundamental cornerstones assuring freedom in America. Guarantees must be provided so that information to the people is not inhibited. However, that flow is currently being threatened by actions of some members of the California Judiciary. They have created exceptions to the current Newsman’s Shield Law, which protects the confidentiality of reporters’ news sources. And the use of confidential sources is critical to the gathering of news. Unfortunately, if this right is not protected, the real losers will be all Californians who rely on the unrestrained dissemination of information by the news media.

This amendment merely places into the state’s Constitution protection already afforded journalists by statute. That law, enacted in 1935, in clear and straightforward language, provides that reporters cannot be held in contempt of court for refusing to reveal confidential sources of information. At least six reporters in California in recent years have spent time in jail rather than disclose their sources to a judge. By giving existing law constitutional status, judges will have to give the protection greater weight before attempting to compel reporters to breach their pledges of confidentiality.

A reporter’s job, of course, is not to withhold information, but to convey it to the public. In most cases, a reporter is able to reveal corruption and malfeasance within government only with the help of an honest employee. If such an individual feels that a reporters’ pledge of confidentiality may be broken under the threat of jail, that person simply will not come forward with his or her information.

If our democratic form of government – of the people, by the people, for the people – is to survive, citizens must be informed. A free press protects our basic liberties by serving as the watchdogs of our nation. Citizens may agree or disagree with reports in the media, but they have been informed, and the final choice is made by the individual.

To jail a journalist because he protected his source is an assault not only on the press but on all Californians as well.

California courts have recognized the significance of elevating the privilege from a statute to the Constitution. As one court explained:

The elevation to constitutional status must be viewed as an intention to favor the interest of the press in confidentiality over the general and fundamental interest of the state in having civil actions determined upon a full development of material facts.

It has long been acknowledged that our state Constitution is the highest expression of the will of the people acting in their sovereign capacity as to matters of state law. When the Constitution speaks plainly on a particular matter, it must be given effect as the paramount law of the state.

California cases reflect a deference to the shield law as a result of its constitutional status. For example, in New York Times Co. v. Superior Court, 51 Cal. 3d 453, 796 P.2d 811, 273 Cal. Rptr. 98 (1990), the California Supreme Court held that a civil litigant seeking information from a non-party journalist has no interests sufficient to overcome the constitutional reporter’s privilege. Id. at 456. Similarly, in Miller v. Superior Court, 21 Cal. 4th 883, 986 P.2d 170, 89 Cal. Rptr. 834 (1999), the Supreme Court held that a prosecutor in a criminal action has no interests sufficient to overcome the reporter’s privilege. Id. at 901. As the Court explained in Miller, “the absoluteness of the immunity embodied in the shield law only yields to a conflicting federal or, perhaps, state constitutional right.” Id.

D. Other sources

III. Scope of protection

A. Generally

California’s shield law generally is very protective, although there are limits to the protection it provides against criminal defendants and in cases where the reporter is a party to the litigation. In addition, because the language of the privilege identifies certain types of news organizations, it is unclear whether it protects all varieties of journalists, such as book authors.

C. Type of case

1. Civil

In civil cases in which the reporter is not a party, the privilege is essentially absolute. As the Supreme Court held in New York Times Co. v. Superior Court, California’s shield law provides “absolute protection to nonparty journalists in civil litigation from being compelled to disclose unpublished information.” 51 Cal. 3d 453, 457, 796 P.2d 811, 273 Cal. Rptr. 98 (1990); seealsoMitchell v. Superior Court, 37 Cal. 3d 268, 274, 690 P.2d 625, 208 Cal. Rptr. 152 (1984) (“[s]ince contempt is generally the only effective remedy against a non-party witness, the California enactments grant such witnesses virtually absolute protection”); In re Willon, 47 Cal. App. 4th 1080, 1091, 55 Cal. Rptr. 2d 245 (1996) (affirming the absolute nature of the protection in civil cases). The reporter’s privilege technically is not a “privilege” because it only protects from contempt, meaning that other civil remedies may be available; however, the Supreme Court has recognized that those remedies are ineffective and essentially useless for compelling compliance with a subpoena. SeeNew York Times, 51 Cal. 3d at 463-64 (California Code of Civil Procedure § 1992, which provides civil remedy for disobeying a subpoena, is “not effective as a practical matter” because remedy provided is minimal).

If the reporter is a party, however, California’s statutory and state constitutional provisions provide no real protection because contempt is not the only remedy available to force disclosure. As the Supreme Court explained,

A party to civil litigation who disobeys an order to disclose evidence [] may be subject to a variety of other sanctions, including the entry of judgment against him. ... Neither Evidence Code section 1070 nor article I, section 2, subdivision (b), protects a party against such sanctions.

Delaney, 50 Cal. 3d at 809-11; see also People v. Charles, 61 Cal. 4th 308, 325-26, 349 P.3d 990, 188 Cal. Rptr. 3d 282 (2015) (trial court order sustaining reporter’s objection was “clearly attuned to its obligation to weigh the competing interests” because it referenced the Delaney factors in overruling reporter’s earlier objection). The court may compel the reporter to disclose the sought-after information if the balance favors the criminal defendant. However, as one federal court noted, the failure to compel disclosure is reversible error only if it affected the jury’s verdict. SeeShine v. Cambra, 1999 WL 252475, *9, 1999 U.S. Dist. LEXIS 5983 (N.D. Cal. 1999).

Conversely, the California Supreme Court has held that the prosecution has no right sufficient to overcome the reporter’s privilege:

Nor may we convert an absolute into a qualified immunity merely because it is in accord with a particular conception of the proper balance between journalists’ rights and prosecutor’s prerogatives. Thus, the absoluteness of the immunity embodied in the shield law only yields to a conflicting federal or, perhaps, state constitutional right. As explained, there is no such conflicting right presented in this case.

In addition, even if a criminal defendant subpoenas a reporter to testify only about published information, the defendant might nonetheless be required to satisfy the Delaney test if the prosecution’s cross-examination would elicit unpublished information. SeeFost v. Superior Court, 80 Cal. App. 4th 724, 732-33, 95 Cal. Rptr. 2d 620 (2000). The court reasoned that admitting the reporter’s testimony about published information but not about unpublished information could deprive the prosecution of its right to cross-examine the reporter. Id. Consequently, the reporter’s testimony regarding published information will “be barred or stricken” if the defendant cannot meet the Delaney test for disclosing unpublished information that is necessary for full cross-examination. Id.

However, the reporter’s testimony about published material may not always be barred or stricken simply because the Delaney test cannot be overcome. In Vasco, defendant argued that the reporter’s testimony on published information, introduced by the prosecution, should have been stricken because defendant could not meet the Delaney threshold test. 131 Cal. App. 4th at 158. The court distinguished Fost, where the prosecution successfully prevented the defendant from relying on published information, on the ground that the prosecution was not permitted to obtain unpublished information from the reporter even if it was material to the prosecution. Instead, in the underlying case, the court noted that the defendant – who was seeking unpublished information in response to the prosecution’s use of published information – was unable to meet his burden of proof under the Delaney test. Thus, analyzing “how Delaney and Miller affect the respective parties’ rights and interests,” the court rejected defendant’s reliance on Fost, reasoning that “if defendant fails to show a reasonable possibility the undisclosed information will materially assist the defense, it follows that defendant has no right to elicit unpublished information on cross-examination and therefore does not suffer prejudice in the same manner as the prosecution when it is denied cross-examination on issues crucial to its case.” Id. at 158-59. In other words, if the unpublished information was of material assistance, defendant would have been able to overcome the Delaney test. However, because the unpublished information was not of material assistance to the defense, the defendant was not prejudiced by the court’s refusal to permit testimony regarding the unpublished information or to strike the reporter’s testimony regarding the published information. The court noted that other interests, such as defendant’s right to test the credibility of a witness, may justify striking that witness’s testimony. However, because “any conceivable error was harmless beyond a reasonable doubt” the court did not address the issue there.

3. Grand jury

There is no California state statutory or case law addressing this issue, but it is noteworthy that California shield law protections were adopted in response to the United States Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), which held that the First Amendment did not provide a newsperson’s privilege against testifying before a criminal grand jury. SeeDelaney v. Superior Court, 50 Cal. 3d 785, 796, 789 P.2d 934, 268 Cal. Rptr. 753 (1990); Miller v. Superior Court, 21 Cal. 4th 883, 899, 986 P.2d 170, 89 Cal. Rptr. 2d 834 (1999). To avoid such an outcome under California law, California “expanded the scope of the newsperson’s protection from disclosure beyond what the First Amendment provides.” Miller, 21 Cal. 4th at 899.

Evidence Code § 1070(a) states that the shield law applies “in any proceeding as defined in Section 901.” Holding that the shield law applies to grand jury subpoenas would be consistent with decisions interpreting Section 901 in the context of other privileges. See, e.g., People v. Petrilli, 226 Cal. App. 4th 814, 822 n.3, 172 Cal. Rptr. 3d 480 (2014) (a “‘[p]roceeding’ is defined broadly to mean virtually any type of hearing at which ‘testimony can be compelled by law [to be given,’ including grand jury proceedings”) (interpreting the spousal testimonial privilege).

In addition, a trio of cases has considered whether a reporter can be required to divulge the source of information regarding a pending trial. Two of these cases, Farr v. Superior Court, 22 Cal. App. 3d 60, 99 Cal. Rptr. 342 (1971), and Rosato, 51 Cal. App. 3d 190, were decided before the reporter’s privilege was elevated to the California Constitution. In both cases, the court held that to protect the integrity of the judiciary and the rights of the defendant, the reporter could be required to divulge the source information. Farr, 22 Cal. App. 3d at 70; Rosato, 51 Cal. App. 3d at 222-24. However, these cases presumably were overruled when the shield law was incorporated into the constitution. SeeLiggett v. Superior Court, 260 Cal. Rptr. 161, 168 (1989) (unpub. dec.); Delaney v. Superior Court, 249 Cal. Rptr. 60, 65 (1988) (unpub. dec.). A more recent case, In re Willon, 47 Cal. App. 4th 1080, 55 Cal. Rptr. 2d 245 (1996), questioned the continuing viability of these cases in light of the constitutional amendment. Id. at 1096-97. The court held that “Article I, section 2(b) offers no real protection if it can be overridden merely by a conclusive presumption that nondisclosure will be harmful to the accused.” Id. Consequently, the court held that,

[W]here a violation of a protective or “gag” order has already occurred, a court should determine the necessity of disclosure of the newsperson’s source by addressing two principal considerations in light of all the relevant circumstances: (1) If the newsperson does not disclose the identity of the source, is there a substantial probability of future violations, or “leaks,” that will impair the defendant’s ability to obtain a fair trial? and (2) Are there reasonable alternatives to disclosure that will protect the interests asserted by both the newsperson and the defendant?

The first inquiry suggests two secondary questions: (a) is there any indication that further leaks are likely to occur; and (b) will those leaks, if published, make it impossible to obtain an impartial jury in the chosen venue? Factors relevant to these determinations include the nature and extent of the publicity, the amount of information already in the public domain, the existence of prejudicial information not yet released to the public, the size of the county from which prospective jurors will be drawn, and the potential of voir dire or other measures to eliminate any prejudice caused by the publicity.

E. Confidential and/or nonconfidential information

The reporter’s privilege in California explicitly protects “any unpublished information.” Cal. Const. art. 1, § 2(b); Cal. Evid. Code § 1070. The California Supreme Court has interpreted these provisions to protect both confidential and non-confidential information. As the Supreme Court explained, “the use of the word ‘any’ makes clear that article I, section 2(b) applies to all information, regardless of whether it was obtained in confidence.” Delaney v. Superior Court, 50 Cal. 3d 785, 798, 268 Cal. Rptr. 753 (1990). AccordNew York Times Co. v. Superior Court, 51 Cal. 3d 453, 461-62, 796 P.2d 811, 273 Cal. Rptr. 98 (1990). Another decision questioned whether the privilege applies where the defendant is both the source of the information and the person seeking its disclosure. People v. Vasco, 131 Cal. App. 4th 137, 152 n.3, 31 Cal. Rptr. 3d 643 (2005). The court considered the issue “troublesome,” opining that in this circumstance, “there is no risk the reporter’s source (the defendant) will complain her confidence has been breached. … Nor is the separate policy of safeguarding press autonomy in any way compromised. … And, where the defendant is the reporter’s source of information, there appears no reason to assume disclosure would hinder the reporter’s ability to gather news in the future.” Id. (citations omitted). It held, however, that under Delaney “we may only consider this factor in the balancing stage.” Id. Because defendant did not meet Delaney’s threshold test, the court concluded that “this factor plays no part in the equation.”

F. Published and/or non-published material

California’s reporter’s privilege explicitly protects “any unpublished information.” Cal. Const. art. 1, § 2(b); Cal. Evid. Code § 1070 (emphasis added). Consequently, it has been argued that a reporter can be compelled to testify regarding any information that has been published. One California court held, however, that the prosecution’s right to cross-examine a reporter who was subpoenaed to testify about only published information may require the defendant to satisfy the Delaney test if the cross-examination would elicit unpublished information. SeeFost v. Superior Court, 80 Cal. App. 4th 724, 732-33, 95 Cal. Rptr. 2d 620 (2000). The court reasoned that admitting the reporter’s testimony about published information but not about unpublished information could deprive the prosecution of its right to cross-examine the reporter. Id. Consequently, the reporter’s testimony regarding published information will “be barred or stricken” if the defendant cannot meet the Delaney test for disclosing unpublished information that is necessary for full cross-examination. Id. This reasoning also should apply to civil cases, and provide a basis for quashing a subpoena – even one that seeks only published information – if a reasonable cross-examination would necessarily require the reporter to divulge unpublished information.

However, the reporter’s testimony about published material will not always be barred or stricken simply because the Delaney test cannot be overcome. In People v. Vasco, defendant argued that the reporter’s testimony on published information, introduced by the prosecution, should have been stricken because defendant could not meet the Delaney threshold test. 131 Cal. App. 4th 137, 158, 31 Cal. Rptr. 3d 643 (2005). The court distinguished Fost, where the prosecution successfully prevented the defendant from relying on published information, on the ground that the prosecution was not permitted to obtain unpublished information from the reporter even if it was material to the prosecution. Instead, in the underlying case, the court noted that the defendant – who was seeking unpublished information in response to the prosecution’s use of published information – was unable to meet his burden of proof under the Delaney test. Thus, analyzing “how Delaney and Miller [v. Superior Court, 21 Cal. 4th 883, 986 P.2d 170, 89 Cal. Rptr. 2d 834 (1999)] affect the respective parties’ rights and interests,” the court rejected defendant’s reliance on Fost. The court reasoned that “if defendant fails to show a reasonable possibility the undisclosed information will materially assist the defense, it follows that defendant has no right to elicit unpublished information on cross-examination and therefore does not suffer prejudice in the same manner as the prosecution when it is denied cross-examination on issues crucial to its case.” Id. at 158-59. In other words, if the unpublished information was of material assistance, defendant would have been able to overcome the Delaney test. However, because the unpublished information was not of material assistance to the defense, the defendant was not prejudiced by the court’s refusal to permit testimony regarding the unpublished information or to strike the reporter’s testimony regarding the published information. The court noted that other interests, such as defendant’s right to test the credibility of a witness, may justify striking that witness’s testimony. However, because “any conceivable error was harmless beyond a reasonable doubt” the court did not address the issue there.

In addition, relying on the plain language of the statute, the courts have strictly construed what it means for information to be “published.” For example, in In re Howard, 136 Cal. App. 2d 816, 289 P.2d 537 (1955), the Court of Appeal held that the publication of an article containing attributed quotations did not deprive the author of his right to decline to answer whether he ever had a conversation with the purported source when that specific information was not contained in the article. “[I]n the absence of any showing other than the published news story,” the court reasoned, the reporter had not disclosed the source of the published information. Id. at 819. As the court explained:

It cannot be assumed from the use of quotation marks that the statement attributed to [the source] was made directly to the petitioner. As [petitioner] notes, his information could have been secured in many ways; that is, . . . he might have learned of [the source’s statements] from another person; he might have received his information from a printed press release; he might have listened to a recording of the speech; or the story might have been telephoned to his newspaper and rewritten by someone else under his by-line.

This attempted distinction between observations and information is unpersuasive. … “Information” includes “reception of knowledge” and “knowledge obtained from reading, observation, or instruction.” … When a reporter or other person is called on to testify as to his observations of an event, he is being asked to disclose information. Moreover if the distinction between observations and information were logical, the result would be that even a newsperson’s confidential observations would not be protected. That result would be contrary to the manifest purpose and language of article I, section 2(b).

H. Media as a party

California’s shield law only protects against a finding of contempt; consequently, if the reporter is a party, the State’s statutory and constitutional privilege provides no real protection. As the Supreme Court explained,

A party to civil litigation who disobeys an order to disclose evidence [] may be subject to a variety of other sanctions, including the entry of judgment against him. … Neither Evidence Code section 1070 nor article I, section 2, subdivision (b), protects a party against such sanctions.

However, the California Supreme Court has held that the First Amendment to the federal Constitution confers a qualified privilege on reporters even when they are parties to a lawsuit. Mitchell, 37 Cal. 3d 268. The Supreme Court held that courts should evaluate five factors in determining whether disclosure by a reporter should be compelled:

(1) whether the reporter is a party to the litigation;

(2) whether the information sought “goes to the heart of the party’s claim”;

(3) whether the party seeking the information has exhausted all alternative sources;

(4) the importance of protecting confidentiality, including whether the information “relates to matters of great public importance” and whether the risk of harm to the source is “substantial”; and

(5) whether the party seeking disclosure has made a prima facie showing on its underlying claim.

I. Defamation actions

There is no citable statute or case law addressing the issue of whether the application of the privilege in defamation actions is treated differently than in other types of cases. At least one unpublished decision from the Court of Appeal suggests that trial courts may require defamation plaintiffs to make a prima facie showing of falsity in accordance with Mitchell v. Superior Court, 37 Cal. 3d 268, 690 P.2d 625, 208 Cal. Rptr. 152 (1984), before requiring newsperson defendants to respond to discovery requests. Bohl v. Pryke, 35 Media L. Rep.2189, 2007 WL 1301006 (Cal. Ct. App. May 4, 2007) (unpub. dec.).

In Bohl, the trial court found that the publisher defendant “could not hide behind the California reporter’s shield law”; after ordering the defendant to respond to discovery requests seeking unpublished information, the trial court issued a terminating sanction (and judgment in plaintiff’s favor) because defendant failed to respond quickly enough. Id. at *2. The Court of Appeal held that this was an abuse of the trial court’s discretion. Id. at *7-8. The court explained that the publisher defendant “had a legitimate argument as to why he was not required to reveal the information, namely, the California reporter’s shield law.” Id. at *8. Because the trial court required plaintiffs to make a Mitchell prima facie showing before ordering the publisher to respond, and because the trial court still had not ruled on the publisher’s SLAPP motion, the defendant publisher was justified in refusing to disclose his source. Id. at *7. The Court of Appeal went on to note that “[a]lthough [p]laintiffs would characterize [publisher defendant’s] actions as brazen violations of the court’s discovery order, there is a strong argument that they amounted to no more than the use of legitimate means for a reporter to protect his or her sources.” Id. at *8.

IV. Who is covered

California’s reporter’s privilege explicitly protects (1) “[a] publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication or by a press association or wire service, or any person who has been so connected or employed” and (2) “a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed.” Cal. Const. Art. I, § 2(b). No California case has addressed whether it protects other types of journalists, such as book authors.

One Court of Appeal held that to be entitled to protection, “the person or entity invoking the shield law [must] be engaged in legitimate journalistic purposes, or have exercised judgmental discretion in such activities.” Rancho Publications v. Superior Court, 68 Cal. App. 4th 1538, 1544-46, 81 Cal. Rptr. 2d 274 (1999) (citing Delaney v. Superior Court, 50 Cal. 3d 785, 798 n.8, 789 P.2d 934, 268 Cal. Rptr. 753 (1990)) (rejecting argument that paid “advertorials” were protected content under shield law). Consequently, this case requires “a prima facie showing” that the information was obtained “for the journalistic purpose of communicating information to the public.” Id. at 1546. Another Court of Appeal asserted that the reporter’s burden is “to show that they were in a class of persons protected by the shield law and that the information provided by their source was ‘procured … for news or news commentary purposes on radio or television.’” In re Willon, 47 Cal. App. 4th 1080, 1092-93, 55 Cal. Rptr. 2d 245 (1996) (citations omitted).

b. Editor

California’s shield laws explicitly protect editors, but do not define the term or limit its application. Cal. Const. Art. I, § 2(b); Cal. Evid. Code § 1070. There is no case law addressing this issue.

c. News

One California court held that to be entitled to protection, “the person or entity invoking the shield law [must] be engaged in legitimate journalistic purposes, or have exercised judgmental discretion in such activities.” Rancho Publications v. Superior Court, 68 Cal. App. 4th 1538, 1544-45, 81 Cal. Rptr. 2d 274 (1999) (citing Delaney v. Superior Court, 50 Cal. 3d 785, 798 n.8, 789 P.2d 934, 268 Cal. Rptr. 753 (1990)). Consequently, this case requires “a prima facie showing” that the information was obtained “for the journalistic purpose of communicating information to the public.” Id. at 1546. Another Court of Appeal asserted that the reporter’s burden is “to show that they were in a class of persons protected by the shield law and that the information provided by their source was ‘procured for news or news commentary purposes on radio or television.’” In re Willon, 47 Cal. App. 4th 1080, 1092-93, 55 Cal. Rptr. 2d 245 (1996) (citations omitted).

e. News organization/medium

California’s shield laws protect persons presently or previously “connected with or employed upon” a “newspaper, magazine, or other periodical publication or by a press association or wire service” or a radio or television station. Cal. Const. Art. I, § 2(b); Cal. Evid. Code § 1070.

In one California case, the court applied the First Amendment’s qualified immunity to the Anti-Defamation League of B’nai B’rith, which publishes magazines and newsletters, although the court noted that the ruling conferring protection on this entity was not challenged. Anti-Defamation League of B’nai B’rith v. Superior Court, 67 Cal. App. 4th 1072, 1079-80, 79 Cal. Rptr. 2d 597 (1998). However, the court pointed out that the Anti-Defamation League was protected “only to the extent its activities or those of its agents constitute journalism.” Id. at 1098. Similarly, in O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1460-66, 44 Cal. Rptr. 3d 72 (2006), the court concluded that a website devoted to news regarding Apple Computers was a covered entity because it could be considered a “periodical publication” protected by the shield law. The court reasoned that “there is no apparent link between the core purpose of the law, which is to shield the gathering of news for dissemination to the public, and the characteristic of appearing in traditional print, on traditional paper.” Id. at 1462. After thoroughly analyzing the method of publication on the internet and comparing the web pages at issue to traditional print publications, the court concluded that “[i]t seems likely that the Legislature intended the phrase ‘periodical publication’ to include all ongoing, recurring news publications while excluding nonrecurring publications such as books, pamphlets, flyers, and monographs.” Id. at 1466.

The courts are divided regarding whether the Shield Law is intended to protect the reporter or the source. In CBS, the court held the privilege was waived when the reporter’s previously confidential sources testified in open court. 85 Cal. App. 3d at 250. The court reasoned that “[s]ince this information is now a matter of public record, it is difficult to see how the production of tapes which will merely confirm – or at worst very slightly amplify – what has already been revealed, will materially erode the vicarious interest in confidentiality asserted by CBS.” Id.

In Playboy Enterprises, the court rejected this reasoning, asserting that arguments based on the CBS decision “are manifestly in direct conflict with the statutory construction adopted herein. We find no support of these positions in the language of the statute.” 154 Cal. App. 3d at 23. The court pointed out that the express language of the statute “does not allow the conclusion that protection of unpublished materials or information is dependent upon the continued confidentiality of the source.” Id.

V. Procedures for issuing and contesting subpoenas

California courts are bound by the state-wide Codes of Civil Procedure and Court Rules. In addition, individual jurisdictions may have “local rules” that contain both procedural and substantive requirements. This section focuses on the state-wide rules of procedure. The appropriate local rules for the judicial district also should be reviewed before responding to a subpoena.

A. What subpoena server must do

1. Service of subpoena, time

California Code of Civil Procedure § 1986.1 generally requires five days’ notice before a reporter can be required to appear at a trial or hearing. It provides, in relevant part:

Because important constitutional rights of a third-party witness are adjudicated when rights under subdivision (b) of Section 2 of Article I of the California Constitution are asserted, except in exigent circumstances a journalist who is subpoenaed in any civil or criminal proceeding shall be given at least five days’ notice by the party issuing the subpoena that his or her appearance will be required.

2. Deposit of security

California law permits the issuance of a subpoena without deposit of any security. See Cal. Code Civ. Proc. § 2020.220. However, the party issuing the subpoena must pay a witness fee and mileage. Id. § 2020.230. If the subpoena seeks testimony, that fee can be paid either when the subpoena is served or at the time of the testimony. Id. If the subpoena only seeks documents, the fee must be paid when the subpoena is served. Id.

3. Filing of affidavit

California law permits the issuance of a subpoena without filing any affidavit. See Cal. Code Civ. Proc. § 2020.220. However, to protect a reporter against a risk of inadvertent waiver of the reporter’s rights, California law requires specific notice to the reporter and to the news organization that employs or contracts with the reporter, including, “at a minimum, an explanation of why the requested records will be of material assistance to the party seeking them and why alternate sources of information are not sufficient to avoid the need for the subpoena.” Cal. Code Civ. Proc. § 1986.1(b).

4. Judicial approval

California law allows for the issuance of a subpoena without prior judicial approval. See Cal. Code Civ. Proc. § 2020.210. The subpoena may be issued by the court clerk or by any attorney of record in the case. Id. However, to protect a reporter against a risk of inadvertent waiver of the reporter’s rights, California law requires specific notice to the reporter and to the news organization that employs or contracts with the reporter, including, “at a minimum, an explanation of why the requested records will be of material assistance to the party seeking them and why alternate sources of information are not sufficient to avoid the need for the subpoena.” Cal. Code Civ. Proc. § 1986.1(b).

5. Service of police or other administrative subpoenas

California administrative agencies have broad discretion to issue subpoenas to investigate any matters within their jurisdiction. E.g., California Restaurant Ass’n v. Henning, 173 Cal. App. 3d 1069, 1075, 219 Cal. Rptr. 630 (1985). If a witness refuses to comply with an administrative subpoena, the agency may initiate proceedings to enforce the subpoena in the same way, and with the same penalties, that would apply to a civil subpoena. See Cal. Gov’t Code §§ 11181, et seq.; Cal. Gov’t Code §§ 37104, et seq.

B. How to Quash

California law allows persons subject to a subpoena to either move to quash the subpoena, pursuant to California Code of Civil Procedure § 1987.1, or for a protective order, pursuant to California Code of Civil Procedure § 2025.420. Motions typically ask for both forms of relief. In addition, one California court held that serving objections to a “records only” subpoena sufficed to preserve the deponent’s objections to the subpoena and placed the onus on the subpoenaing party to move to compel. SeeMonarch Healthcare v. Superior Court, 78 Cal. App. 4th 1282, 1290, 93 Cal. Rptr. 2d 619 (2000).

1. Contact other party first

A motion for a protective order requires the movant to provide “a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” Cal. Code Civ. Proc. § 2016.040; see also Cal. Code Civ. Proc. § 2025.420. There is no such requirement for a motion to quash, except in limited circumstances (which generally do not apply to reporters). Because California cases have interpreted the reporter’s privilege to provide absolute protection under most circumstances, and because California judges generally expect parties to attempt informal resolution before filing a motion, it is almost always a good idea to contact opposing counsel and attempt to negotiate withdrawal of the subpoena. The party issuing the subpoena often is not familiar with the privilege, and may voluntarily withdraw the subpoena.

2. Filing an objection or a notice of intent

California law allows a non-party to serve written objections to a subpoena under limited circumstances. E.g., Cal. Code Civ. Proc. § 1985.3(g) (subpoena duces tecum for consumer’s personal records); § 1985.6(f) (subpoena duces tecum for employment records). In addition, California law provides that privileges may be preserved by a timely objection during the deposition. See Cal. Code Civ. Proc. § 2025.460. However, one California court took these provisions a step further, and held that serving objections to a “records only” subpoena sufficed to preserve the deponent’s objections to the subpoena and placed the onus on the subpoenaing party to move to compel. SeeMonarch Healthcare v. Superior Court, 78 Cal. App. 4th 1282, 1290, 93 Cal. Rptr. 2d 619 (2000). Although this case arose in the context of a “records only” subpoena, its reasoning also may apply to subpoenas seeking testimony.

b. Motion to compel

c. Timing

For civil cases in state court, the California Code of Civil Procedure requires 16 court days’ notice of the motion to quash or for a protective order, and more if the papers are served other than by personal delivery. See Cal. Code Civ. Proc. §§ 1005, 1013. California Rule of Court 4.111 requires 10 calendar days’ notice of a pre-trial motion filed in a criminal matter. More notice should be given if the motion is served other than by personal delivery, consistent with the Code of Civil Procedure. See Cal. Code Civ. Proc. § 1013. In addition, the judicial district’s local rules may contain different timing requirements for criminal cases.

Frequently the requisite notice period cannot be given, because the subpoena was served on short notice. Under those circumstances, the approach should differ, depending on whether the subpoena is for deposition testimony or testimony at a court appearance. If the subpoena seeks deposition testimony, it is probably safe to file the motion giving the requisite 16 court or 10 calendar days’ notice, and merely advise opposing counsel in writing that in light of the motion the reporter will not appear at the deposition. There is, however, no statutory or case law addressing this issue.

If the subpoena seeks testimony at a court appearance, the motion should be scheduled for the date of the court appearance or earlier. Although many courts will simply accept the motion along with an explanation why more notice could not be given, it is safest to either (1) present the motion itself as an exparte application, pursuant to California Rule of Court 3.1200 et seq.; or (2) file an exparte application for an Order Shortening Time to hear the motion, pursuant to California Code of Civil Procedure § 1005(b) and California Rule of Court 3.1200 et seq. These motions may be filed simultaneously, as alternative requests.

d. Language

There is no stock language or preferred text to be included in the motion. However, because California law requires specific findings from trial courts before compelling disclosure of unpublished information, the motion should advise the trial court of this requirement. Cal. Code Civ. Proc. § 1986.1(c) (any order holding a journalist in contempt must state, “at a minimum, why the information will be of material assistance to the party seeking the evidence, and why alternate sources of the information are not sufficient ….”).

e. Additional material

The Rules require “[a]ny motion involving the content of a discovery request,” including motions to compel answers or the production of documents at a deposition, to be accompanied by a separate statement of disputed matters. California Rule of Court 3.1020. However, it is unlikely that this Rule applies to a subpoena issued to a reporter, particularly when the motion is brought before any testimony is taken.

In addition, the motion to quash can seek an award of attorneys’ fees and costs if an argument can be made that the motion was “opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” Cal. Code Civ. Proc. § 1987.2.

4. In camera review

a. Necessity

No statute mandates that the trial court conduct an in camera review of the materials before determining whether they should be released, and the Supreme Court has rejected the idea that in camera review is required in every case. SeeDelaney v. Superior Court, 50 Cal. 3d 785, 813,789 P.2d 934, 268 Cal. Rptr. 753 (1990). However, California case law does “encourage parties to allow disputed materials to be examined by the trial court in camera” as a possible means of resolution. Sci-Sacramento, Inc. v. Superior Court, 54 Cal. App. 4th 654, 662, 62 Cal. Rptr. 2d 868 (1997). Moreover, the California Supreme Court has concluded that “[w]hen a criminal defendant [] seeks confidential or sensitive information, the practical need for an in camera hearing is obvious.” Delaney, 50 Cal. 3d at 814. The Court held that if a trial court determines that “a newsperson’s claim of confidentiality or sensitivity is colorable,” “it must then receive the newsperson’s testimony in camera.” Id. Finally, for a defendant to challenge an in camera proceeding, he must show how the in camera proceeding negatively influenced his ability to present a defense or receive assistance from counsel; an unsubstantiated claim is insufficient. People v. Ramos, 34 Cal. 4th 494, 527, 101 P.3d 478, 21 Cal. Rptr. 3d 575 (2004).

b. Consequences of consent

Consent to in camera review of the reporter’s materials will not result in a waiver of the privilege. Sci-Sacramento, Inc. v. Superior Court, 54 Cal. App. 4th 654, 662, 62 Cal. Rptr. 2d 868 (1997). Moreover, while there is no automatic stay of any order that might be entered following review of the materials, the California Supreme Court has recommended that trial courts enter such stays, and trial courts regularly do so. SeeNew York Times Co. v. Superior Court, 51 Cal. 3d 453, 460, 796 P.2d 811, 273 Cal. Rptr. 98 (1990); Sci Sacramento, 54 Cal. App. 4th at 667.

c. Consequences of refusing

No California statute or case law specifically addresses the consequences of refusing to allow in camera review, although it probably would result in entry of a finding of contempt. However, the California Supreme Court has directed trial courts to stay contempt orders pending appeal. SeeNew York Times Co. v. Superior Court, 51 Cal. 3d 453, 460, 796 P.2d 811, 273 Cal. Rptr. 98 (1990). Consequently, it is unlikely that refusal to allow in camera review would result in immediate execution of the contempt sentence.

5. Briefing schedule

For civil cases in state court the California Code of Civil Procedure requires 16 court days’ notice of the motion, and more if the papers are served other than by personal delivery. See Cal. Code Civ. Proc. §§ 1005, 1013. Opposing papers must be served and filed 9 court days before the hearing, and reply papers must be served and filed 5 court days before the hearing. Id. § 1005. These deadlines are extended if service is other than by personal delivery, as provided in California Code of Civil Procedure. §§ 1010, 1011, 1012, 1013.

For criminal cases, California Rule of Court 4.111 requires motions to be served and filed at least 10 court days, opposition papers 5 court days, and replies 2 court days before the hearing. More notice should be given if the papers are served other than by personal delivery, consistent with California Code of Civil Procedure § 1013. In addition, the judicial district’s local rules may contain separate timing requirements for criminal cases.

6. Amicus briefs

Amicus briefs typically are not filed in California’s Superior Courts, although no law prevents amicus support at that level, and trial courts usually will accept such briefs for filing. They routinely are accepted in matters pending before the Courts of Appeal and the Supreme Court. California Rules of Court 8.200, 8.500(g) and 8.520(f) provide the procedure for submitting an amicus brief.

Three organizations in California regularly serve as amici on reporter’s privilege issues. The First Amendment Coalition can be reached at firstamendmentcoalition.org. FAC’s address is 534 Fourth Street, Suite B, San Rafael, California 94901, and its telephone number is (415) 460-5060. CalAware can be reached at calaware.org. Its address is 2218 Homewood Way, Carmichael, California 95608, and its telephone number is (916) 487-7000. The California Newspapers Publishers Association can be reached at cnpa.com. CNPA’s address is 2701 K Street, Sacramento, California 95816, and its telephone number is (916) 288-6000.

VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

The California Supreme Court has stated that “a person claiming a privilege bears the burden of proving he is entitled to the privilege.” Delaney v. Superior Court, 50 Cal. 3d 785, 806 n.20, 789 P.2d 934, 268 Cal. Rptr. 753 (1990) (citations omitted). Consequently, “[t]he newsperson seeking immunity must prove all the requirements of the shield law have been met.” Id. One court asserted that the reporter’s burden is “to show that they were in a class of persons protected by the shield law and that the information provided by their source was ‘procured … for news or news commentary purposes on radio or television.’” In re Willon, 47 Cal. App. 4th 1080, 1092-93, 55 Cal. Rptr. 2d 245 (1996) (citations omitted). Another court held that the reporter must make a prima facie showing that the information was obtained “for the journalistic purpose of communicating information to the public.” Rancho Publications v. Superior Court, 68 Cal. App. 4th 1538, 1546, 81 Cal. Rptr. 2d 274 (1999).

Once the journalist meets this initial burden, the burden “shifts to the criminal defendant seeking discovery to make the showing required to overcome the shield law.” Delaney, 50 Cal. 3d at 806 n.20 (citation omitted). The trial court may require defendant to submit an offer of proof to meet his or her burden under Delaney. It is insufficient for the defendant to simply submit the questions he or she hopes to ask the reporter. People v. Vasco, 131 Cal. App. 4th 137, 155, 31 Cal. Rptr. 3d 643 (2005). In Vasco, for example, the court noted that “defendant filed no declarations or investigative reports to support her Delaney showing.” Id. (citing cases holding that “offer of proof must set forth the substance and purpose of the evidence”). Thus, the court concluded that defendant was not entitled to compel disclosure of the reporter’s unpublished information. Id. at 156.

1. Relevance of material to case at bar

In criminal cases, the defendant bears the burden of showing “a reasonable possibility the information will materially assist his defense.” Delaney v. Superior Court, 50 Cal. 3d 785, 808, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). If this threshold showing is established, the court should consider the other elements discussed below. If the defendant does not make this threshold showing, the defendant has no right to the reporter’s information. Id. at 808-09; see also People v. Cooper, 53 Cal. 3d 771, 820, 809 P.2d 865, 281 Cal. Rptr. 90 (1991) (California Supreme Court refused to compel a reporter to produce anonymous letter that allegedly described mishandling of a murder investigation, finding “the competency of the investigation … was only tangentially related to the relevant issue of guilt,” and already had been “exhaustively explored”).

Once the defendant has made the threshold showing, the court should balance four factors, one of which is “the importance of the information to the criminal defendant.” SeeDelaney, 50 Cal. 3d at 811. The California Supreme Court noted in Delaney that “[a] defendant in a given case may be able not only to meet but to exceed the threshold ‘reasonable possibility’ requirement.” Id. “If so, the balance will weigh more heavily in favor of disclosure than if he could show only a reasonable possibility the evidence would assist his defense.” Id.

In civil cases, “disclosure should be denied unless the information goes ‘to the heart of the plaintiff’s claim.’” Mitchell v. Superior Court, 37 Cal. 3d 268, 280, 690 P.2d 625, 208 Cal. Rptr. 152 (1984) (citations omitted). The Court noted that the trial court should evaluate the information sought from this perspective, and only allow discovery of the information that is essential to the claim of the subpoenaing party. Id. at 282.

2. Material unavailable from other sources

In criminal cases, after the threshold showing has been met, one of the four factors the court should consider is whether there is an alternative source for the unpublished information. Delaney v. Superior Court, 50 Cal. 3d 785, 811, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). Although this is only one of four factors to be weighed in deciding whether to compel disclosure, one California court has held that where an alternative source has been identified, the trial court may deny access to the reporter’s information. SeePeople v. Von Villas, 10 Cal. App. 4th 201, 236, 13 Cal. Rptr. 2d 62 (1992).

The type of information being sought (e.g., names of potential witnesses, documents, a reporter’s eyewitness observations), the quality of the alternative source, and the practicality of obtaining the information from the alternative source.

Id. In Delaney, the Supreme Court found that the reporters were the only disinterested witnesses to the search at issue in the case, and consequently “that there was no meaningful alternative source for the reporters’ testimony.” Id. at 815-16.

In civil cases, a more demanding search generally is required before a court may conclude that the subpoenaing party has exhausted alternative sources. The California Supreme Court held in Mitchell v. Superior Court, 37 Cal. 3d 268, 690 P.2d 625, 208 Cal. Rptr. 152 (1984), that “discovery should be denied unless the plaintiff has exhausted all alternative sources of obtaining the needed information.” Id. at 282. However, in Delaney, the Court distinguished Mitchell on the grounds that the source there was confidential. 50 Cal. 3d at 811. The Delaney Court asserted that “[w]here the information is shown to be not confidential or sensitive, the primary basis for the requirement is not present and imposing a rigid requirement would be to sustain a rule without a reason.” 50 Cal. 3d at 811-12.

However, in civil cases, the party seeking the information generally will have to provide proof that they exhausted all alternative sources for the information before discovery from the reporter will be allowed. SeeMitchell v. Superior Court, 37 Cal. 3d 268, 282, 690 P.2d 625, 208 Cal. Rptr. 152 (1984).

c. Source is an eyewitness to a crime

There is no statutory or case law addressing this issue. However, in Delaney v. Superior Court, 50 Cal. 3d 785, 789 P.2d 934, 268 Cal. Rptr. 753 (1990), the court considered it significant that the reporter was an eyewitness to the crime and there were no other disinterested witnesses. Id. at 815-16.

3. Balancing of interests

As discussed throughout this substantive section, California courts balance these and a number of other interests in determining whether to quash the subpoena. “The relative weight of these factors in a particular case is for the trial court to decide.” People v. Charles, 61 Cal. 4th 308, 325, 349 P.3d 990, 188 Cal. Rptr. 3d 282 (2015).

4. Subpoena not overbroad or unduly burdensome

While the courts have some authority to compel disclosure in civil cases in which the reporter is a party, trial courts should not enforce overbroad subpoenas. Mitchell v. Superior Court, 37 Cal. 3d 268, 282, 690 P.2d 625, 208 Cal. Rptr. 152 (1984). Rather, the court must examine each item of information sought, and allow discovery only as to those items that go “to the heart of the claim.” Id. at 282. As the Court noted, “[t]here may well be an irreducible core of information which cannot be discovered except through the Mitchells, but plaintiffs have not yet reduced their discovery to that core.” Id.

The test for criminal defendants to obtain privileged information does not describe the inquiry in this way, although it would require the trial court to reject any overbroad portions of a subpoena. Delaney v. Superior Court, 50 Cal. 3d 785, 800, 807-13, 789 P.2d 934, 268 Cal. Rptr. 753 (1990) (criminal defendant must show, as a threshold matter, that there is “a reasonable possibility that the information will materially assist his defense”; if defendant satisfies this burden, courts must weigh: (1) whether the information sought is confidential or sensitive; (2) the interests protected by the reporter’s privilege law; (3) the importance of the information to the defendant; and, (4) whether alternative sources for the information exist); see also People v. Charles, 61 Cal. 4th 308, 325-26, 349 P.3d 990, 188 Cal. Rptr. 3d 282 (2015) (trial court order sustaining reporter’s objection was “clearly attuned to its obligation to weigh the competing interests” because it referenced the Delaney factors in overruling reporter’s earlier objection).

5. Threat to human life

6. Material is not cumulative

While the courts have some authority to compel disclosure in civil cases in which the reporter is a party, trial courts should not enforce subpoenas seeking cumulative information. Mitchell v. Superior Court, 37 Cal. 3d 268, 282, 690 P.2d 625, 208 Cal. Rptr. 152 (1984). Rather, the court must examine each item of information sought, and allow discovery only as to those items that go “to the heart of the claim.” Id. at 282. As the Court noted, “[t]here may well be an irreducible core of information which cannot be discovered except through the Mitchells, but plaintiffs have not yet reduced their discovery to that core.” Id.

In determining whether a criminal defendant may obtain privileged information, the trial court must weigh whether alternative sources for the information exist. Delaney v. Superior Court, 50 Cal. 3d 785, 800, 807-13, 789 P.2d 934, 268 Cal. Rptr. 753 (1990) (criminal defendant must show, as a threshold matter, that there is “a reasonable possibility that the information will materially assist his defense”; if defendant satisfies this burden, courts must weigh: (1) whether the information sought is confidential or sensitive; (2) the interests protected by the reporter’s privilege law; (3) the importance of the information to the defendant; and, (4) whether alternative sources for the information exist).

7. Civil/criminal rules of procedure

To protect a reporter against a risk of inadvertent waiver of the reporter’s rights, California law requires specific notice to the reporter and to the news organization that employs or contracts with the reporter, including, “at a minimum, an explanation of why the requested records will be of material assistance to the party seeking them and why alternate sources of information are not sufficient to avoid the need for the subpoena.” Cal. Code Civ. Proc. § 1986.1(b).

In addition, “[i]f a trial court holds a journalist in contempt …, the court shall set forth findings, either in writing or on the record, stating at a minimum, why the information will be of material assistance to the party seeking the evidence, and why alternate sources of the information are not sufficient ….” Id. § 1986.1(c).

Generally, nonconfidential or nonsensitive information will be less worthy of protection than confidential or sensitive information. Disclosure of the latter types of information will more likely have a significant effect on the newsperson’s future ability to gather news. … The protection of that ability is the primary purpose of the shield law.

Id.

In criminal cases, the courts also should consider “[t]he interests sought to be protected by the shield law,” i.e., “whether the policy of the shield law will in fact be thwarted by disclosure.” Delaney, 50 Cal. 3d at 810. The Court explained that if “the criminal defendant seeking disclosure is himself the source of the information, it cannot be seriously argued that the source (the defendant) will feel that his confidence has been breached.” Id; see also People v. Vasco, 131 Cal. App. 4th 137, 152 n.3, 31 Cal. Rptr. 3d 643 (2005) (citing Delaney for this proposition but not reaching issue).

In civil cases, the courts should consider, in addition to the factors discussed above, “the nature of the litigation and whether the reporter is a party.” Mitchell v. Superior Court, 37 Cal. 3d 268, 279 , 690 P.2d 625, 208 Cal. Rptr. 152 (1984). The Supreme Court asserted that “[i]n general disclosure is appropriate in civil cases, especially when the reporter is a party to the litigation.” Id. However, the Court clarified that whether disclosure should be ordered depends “upon the balancing of other relevant considerations.” Id.

The courts also should consider in civil cases “the importance of protecting confidentiality in the case at hand.” Id. at 282. As the Supreme Court explained:

The investigation and revelation of hidden criminal or unethical conduct is one of the most important roles of the press in a free society – a role that may depend upon the ability of the press and the courts to protect sources who may justifiably fear exposure and possible retaliation. Thus, when the information relates to matters of great public importance, and when the risk of harm to the source is a substantial one, the court may refuse to require disclosure even though the plaintiff has no other way of obtaining essential information.

Id. at 283.

Finally, in civil cases, the courts “may require the plaintiff to make a prima facie showing that the alleged defamatory statements are false before requiring disclosure.” Id. This is necessary “because ‘to routinely grant motions seeking compulsory disclosure ... without first inquiring into the substance of a libel allegation would utterly emasculate the fundamental principles” of New York TimesCo. v. Superior Court, 51 Cal. 3d 453, 796 P.2d 811, 273 Cal. Rptr. 98 (1990), and similar cases. Id. The Court clarified, however, that “[a] showing of falsity is not a prerequisite to discovery, but it may be essential to tip the balance in favor of discovery.” Id.

C. Waiver or limits to testimony

1. Is the privilege waivable?

Under California Code of Civil Procedure § 1986.1, “[n]o testimony or other evidence given by a journalist under subpoena in a civil or criminal proceeding may be construed as a waiver of the immunity rights provided by subdivision (b) of Section 2 of Article I of the California Constitution.” Consequently, partial disclosure of information should not result in waiver of protection for any information that was not actually disclosed. Id.; seealsoPlayboy Enterprises, Inc. v. Superior Court, 154 Cal. App. 3d 14, 23, 201 Cal. Rptr. 207 (1984); Fost v. Superior Court, 80 Cal. App. 4th 724, 735, 95 Cal. Rptr. 2d 620 (2000). Allowing in camera review of the information sought also should not be deemed a waiver of the reporter’s privilege. Sci-Sacramento, Inc. v. Superior Court, 54 Cal. App. 4th 654, 661-62, 62 Cal. Rptr. 2d 868 (1997).

However, because the shield law protects only unpublished information and the identity of sources, information that has been “published” may not be protected by the shield law. No reported California decision has found the privilege to have been waived as a result of the reporter’s disclosure of unpublished information. However, some cases have suggested that waiver might be found. For example, in Rosato v. Superior Court, the dissenting opinion asserted that

To protect the privilege the newsman must avoid answering any questions which might result in an actual or constructive waiver of the privilege. By voluntarily answering questions as to some facts which would lead to the source, he will be held to have waived the privilege as to all other facts connected therewith.

51 Cal. App. 3d 190, 233, 124 Cal. Rptr. 427 (1975) (citations omitted). The dissent mentioned Farr v. Superior Court, 22 Cal. App. 3d 60, 70, 99 Cal. Rptr. 342 (1971), as a “clear example of such a waiver,” asserting that “by admitting that he had received the information from three persons subject to the court’s order, Farr impliedly waived his right not to disclose their identities.” Id. However, because the Farr court did not explicitly evaluate any claim of waiver, it does not provide any basis for this argument.

2. Elements of waiver

A party arguing that the reporter’s privilege has been waived generally has a high burden. As one California court explained,

Waiver requires a voluntary act, knowingly done, with sufficient awareness of the relevant circumstances and likely consequences. [] There must be actual or constructive knowledge of the existence of the right to which the person is entitled. . . . There must be an actual intention to relinquish it or conduct so inconsistent with the intent to enforce that right in question as to induce a reasonable belief that it has been relinquished.

In an analogous case rejecting the argument that the defendant waived a First Amendment defense, the California Court of Appeal explained,

The First Amendment “safeguards a freedom which is the matrix, the indispensable condition, of nearly every other form of freedom.” Where the ultimate effect of sustaining a claim of waiver might be an imposition on that valued freedom, we are unwilling to find waiver in circumstances which fall short of being clear and compelling.

Ferlauto v. Hamsher, 74 Cal. App. 4th 1394, 1399-1401, 88 Cal. Rptr. 2d 843 (1999) (citing Curtis Publ’g Co. v. Butts, 388 U.S. 130, 145, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967)) (internal quotations omitted). In Ferlauto, the plaintiff argued that the defendant could “not assert the First Amendment as a defense to his claims because they knowingly and voluntarily waived those rights by entering into a confidentiality agreement.” Id. at 1399. But because the court found the contract at issue to be “imprecise and overbroad,” the court held that the contract was “an inadequate basis for a knowing and intelligent waiver of the [federal] constitutional right to freedom of speech.” Id. at 1400.

a. Disclosure of confidential source's name

One California court held that the privilege was waived when the previously confidential sources testified in open court. CBS, Inc. v. Superior Court, 85 Cal. App. 3d 241, 250, 149 Cal. Rptr. 421 (1978), disapproved on other grounds, Delaney v. Superior Court, 50 Cal. 3d 785, 797 n. 6, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). The court reasoned “[s]ince this information is now a matter of public record, it is difficult to see how the production of tapes which will merely confirm – or at worst very slightly amplify – what has already been revealed, will materially erode the vicarious interest in confidentiality asserted by CBS.” Id.

Other courts came to the opposite conclusion. One court asserted that arguments based on the CBS decision “are manifestly in direct conflict with the statutory construction adopted herein. We find no support of these positions in the language of the statute.” Playboy Enterprises, Inc. v. Superior Court, 154 Cal. App. 3d 14, 23, 201 Cal. Rptr. 207 (1984). The court in Playboy Enterprises pointed out that the express language of the statute “does not allow the conclusion that protection of unpublished materials or information is dependent upon the continued confidentiality of the source.” Id; see also McGarry v. University of San Diego, 154 Cal. App. 4th 97, 120, 64 Cal. Rptr. 3d 467 (2007) (following Playboy in holding that “we do not believe a limited disclosure can be deemed to waive the immunity for refusing to reveal unpublished information”).

Still another court viewed revelation of the source’s identity as a reason for refusing to compel disclosure of additional information from the reporter. In KSDO v. Superior Court, the reporter revealed the source’s identity and the court concluded that:

[H]ere, the sources have been revealed so that plaintiffs are free to test the reliability of those sources and there is no showing that it is necessary to have [the reporter’s] notes to do so. Basically, plaintiffs are now able to get the information they seek from sources other than Brown’s notes.

d. Other elements

3. Agreement to partially testify act as waiver?

An agreement to testify will not waive the privilege as to any information not actually divulged. California Code of Civil Procedure § 1986.1 provides in part:

No testimony or other evidence given by a journalist under subpoena in a civil or criminal proceeding may be construed as a waiver of the immunity rights provided by subdivision (b) of Section 2 of Article I of the California Constitution.

Cal. Code Civ. Proc. § 1986.1(a).

In addition, relying on the language of the shield laws, one court explained that:

Direct testimony regarding published information cannot constitute a waiver of the right to refuse to disclose related information that is unpublished because the shield law explicitly provides that unpublished information remains protected “whether or not related information has been disseminated.”

VII. What constitutes compliance?

A. Newspaper articles

Printed materials, purporting to be a particular newspaper or periodical, are presumed to be that newspaper or periodical if regularly issued at average intervals not exceeding three months.

Cal. Evid. Code § 645.1. Consequently, if the party issuing the subpoena is only interested in the contents of the article, the reporter’s testimony may be unnecessary. Typically, however, the subpoenaing party desires more information than is available in the article itself – even if it is only the reporter’s testimony that the article was true and accurate as published – and will insist on the reporter’s testimony.

B. Broadcast materials

Broadcast materials may be authenticated by anyone capable of testifying that the materials are an accurate representation of what they purport to be. SeeJones v. City of Los Angeles, 20 Cal. App. 4th 436, 440 n.5, 24 Cal. Rptr. 2d 528 (1993). As the court explained, “though the requisite foundation may, and usually will, be laid by the photographer, it may also be provided by any witness who perceived the events filmed.” Id. (citations omitted).

A printed representation of images stored on a video or digital medium is presumed to be an accurate representation of the images it purports to represent. This presumption is a presumption affecting the burden of producing evidence. If a party to an action introduces evidence that a printed representation of images stored on a video or digital medium is inaccurate or unreliable, the party introducing the printed representation into evidence has the burden of proving, by a preponderance of evidence, that the printed representation is an accurate representation of the existence and content of the images that it purports to represent.

Cal. Evid. Code § 1553(a). Consequently, if the party issuing the subpoena is only interested in the contents of the broadcast materials, the reporter’s testimony may be unnecessary. Typically, however, the subpoenaing party desires more information than is available in the materials themselves – even if it is only the reporter’s testimony that the materials were true and accurate as broadcast – and will insist on the reporter’s testimony.

C. Testimony vs. affidavits

A declaration from the reporter may be sufficient in some circumstances, because declarations are admissible in support of most motions in California courts. As the California Supreme Court explained, “hearing and determination ‘in the manner provided by law for the hearing of motions’ ([Cal. Code Civ. Proc.] § 1290.2) would ordinarily mean the facts are to be proven by affidavit or declaration and documentary evidence, with oral testimony taken only in the court’s discretion.” Rosenthal v. Great Western Financial Securities Corp., 14 Cal. 4th 394, 413-14, 926 P.2d 1061, 58 Cal. Rptr. 2d 875 (1996); seealsoPeople v. Superior Court (Zamudio), 23 Cal. 4th 183, 201, 999 P.2d 686, 96 Cal. Rptr. 2d 463 (2000) (“California law affords numerous examples of a trial court’s authority, in ruling upon motions, to resolve evidentiary disputes without resorting to live testimony”); Cal. Code Civ. Proc. § 2009 (listing situations in which declaration admissible in lieu of live testimony).

However, California cases also are clear that the trial court may require live testimony at some types of hearings. E.g., People v. Hedgecock, 51 Cal. 3d 395, 415, 795 P.2d 1260 (1990) (trial court may require evidentiary hearing on motion for new trial in criminal case; distinguishing motions for new trials in civil cases, which must be based on affidavits alone). Moreover, declarations are not admissible at trial in lieu of live testimony. SeeRowan v. City & County of San Francisco, 244 Cal. App. 2d 308, 314 n.3, 53 Cal. Rptr. 88 (1966) (“[a]ffidavits being hearsay may not be used in evidence except where permitted by statute and section 2009 of the Code of Civil Procedure permitting their use on motion has no relevance [in trial]” (citations omitted)). Consequently, the subpoenaing party normally will refuse to accept a declaration in lieu of live testimony, and the courts will require the reporter to testify.

D. Non-compliance remedies

1. Civil contempt

California law provides that before a reporter may be held in contempt for refusing to testify, the court must enter specific findings to support the contempt order:

If a trial court holds a journalist in contempt of court in a criminal proceeding notwithstanding subdivision (b) of Section 2 of Article I of the California Constitution, the court shall set forth findings, either in writing or on the record, stating at a minimum, why the information will be of material assistance to the party seeking the evidence, and why alternate sources of the information are not sufficient to satisfy the defendant’s right to a fair trial under the Sixth Amendment to the United States Constitution and Section 15 of Article I of the California Constitution.

a. Fines

California Code of Civil Procedure § 1218 limits to $1,000 any fine that may be imposed as a result of a contempt order. In addition, for a contempt committed outside of the presence of the court, the party committing the contempt “may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by this party in connection with the contempt proceeding.” Id.

b. Jail

California Code of Civil Procedure § 1218 limits to five days any imprisonment that may be ordered as a result of a contempt order. In one case, Tim Crews, publisher, editor and chief reporter and photographer of The Sacramento Valley Mirror, chose to go to jail rather than reveal the source of stories he published regarding the arrest of a local California Highway Patrol officer for possession of a stolen gun. In response to this and other publicized journalist subpoenas, the California Legislature enacted Code of Civil Procedure § 1986.1, which contains a number of procedural mechanisms designed to protect reporters. In addition, the California Supreme Court has directed trial courts to stay contempt orders pending appeal, to avoid unnecessary confinement of the reporter. New York Times Co. v. Superior Court, 51 Cal. 3d 453, 460, 796 P.2d 811, 273 Cal. Rptr. 98 (1990).

3. Other remedies

California’s shield laws only protect against a finding of contempt. Cal. Const. Art. I, § 2(b); Cal. Evid. Code § 1070. Consequently, “[a] party to civil litigation who disobeys an order to disclose evidence [] may be subject to a variety of other sanctions, including the entry of judgment against him.” Mitchell v. Superior Court, 37 Cal. 3d 268, 274, 690 P.2d 625, 208 Cal. Rptr. 152 (1984). A reporter who is not a party to the litigation also may be subject to other civil remedies; however, as the Supreme Court has recognized, those remedies are essentially meaningless. SeeNew York Times Co. v. Superior Court, 51 Cal. 3d 453, 463-64, 796 P.2d 811, 273 Cal. Rptr. 98 (1990) (California Code of Civil Procedure § 1992, which provides civil remedy for disobeying a subpoena, is “not effective as a practical matter” because remedy provided is minimal).

VIII. Appealing

A. Timing

1. Interlocutory appeals

Because California’s shield laws only protect against a finding of contempt, an appeal may be found to be premature before the trial court has actually found the reporter in contempt. SeeNew York Times Co. v. Superior Court, 51 Cal. 3d 453, 458, 796 P.2d 811, 273 Cal. Rptr. 98 (1990). However, as the Supreme Court also made clear in this decision:

To avoid confinement under a judgment of contempt that may subsequently be set aside, a trial court should stay its judgment of contempt to allow the contemnor newsperson sufficient time in which to seek writ relief if the trial court believes there is any colorable argument the newsperson can make against the contempt adjudication. If the trial court nevertheless declines to issue a stay, a reviewing court should do so pending its decision whether to issue an extraordinary writ.

Id. at 460.

California’s rules do not allow for a direct appeal of a civil contempt order. See Cal. Code Civ. Proc. § 904.1. Consequently, if a contempt order is entered, the reporter should file a petition for extraordinary relief, seeking a writ of review, mandate or prohibition to the trial court, pursuant to California Code of Civil Procedure §§ 1067, 1084 or 1102. Although California’s courts generally do not grant discretionary review of discovery matters, “[e]xtraordinary review will be granted, ... when a discovery ruling plainly threatens immediate harm, such as loss of a privilege against disclosure, for which there is no other adequate remedy … or where the case presents an opportunity to resolve unsettled issues of law and furnish guidance applicable to other pending or anticipated cases ....” O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1439, 44 Cal. Rptr. 3d 72 (2006) (citations omitted).

California’s statutes do not impose a time limit for such writs; however, the appellate court “has discretion to deny a petition filed after the 60-day period applicable to appeals, and should do so absent ‘extraordinary circumstances’ justifying the delay.” Popelka, Allard, McCowan & Jones v. Superior Court, 107 Cal. App. 3d 496, 499, 165 Cal. Rptr. 748 (1980) (citations omitted; emphasis in original). Moreover, from a practical perspective, if the trial court stays the contempt order for a limited period of time, the deadline for filing the writ petition will be dictated by the duration of the trial court stay.

2. Expedited appeals

The California Code of Civil Procedure authorizes the appellate court to issue a peremptory writ in the first instance, i.e., without a full briefing schedule or oral argument. See Cal. Code Civ. Proc. § 1088. However, California law imposes limits on the use of such writs. The Code of Civil Procedure provides that the writ must be preceded by at least ten days’ notice to the adverse party. Id. This notice typically is issued directly by the Court of Appeal to the respondent. See, e.g., Swaithes v. Superior Court, 212 Cal. App. 3d 1082, 1089, 261 Cal. Rptr. 41 (1989). However, the party seeking issuance of a peremptory writ in the first instance should give clear notice of that request in the writ petition.

In addition, California courts have limited the availability of such writs. One California court explained that,

The second option, i.e., the peremptory writ in the first instance, is subject to severe restrictions. As the exception to the rule, the procedure may only be used in the limited situation where entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue. … Moreover, on those rare occasions that a reviewing court resorts to use of a peremptory writ in the first instance, it is constrained to comply with the procedural safeguards in Palma [v. U.S. Industrial Fasteners, Inc., 36 Cal. 3d 171, 681 P.2d 893, 203 Cal. Rptr. 626 (1984)] – that is, to receive or solicit opposition before directing issuance of the writ.

Kernes v. Superior Court, 77 Cal. App. 4th 525, 529, 91 Cal. Rptr. 2d 765 (2000). SeealsoNg v. Superior Court, 4 Cal. 4th 29, 35, 840 P.2d 961, 13 Cal. Rptr. 2d 856 (1992) (asserting that court may issue peremptory writ in the first instance “only when petitioner’s entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue – for example, when such entitlement is conceded or when there has been clear error under well-settled principles of law and undisputed facts – or where there is an unusual urgency requiring acceleration of the normal process”). Other writs are available under California statutory law, but for those writs, the Court of Appeal generally will issue an order to show cause why the lower court’s decision should not be reversed, giving the court and the parties an opportunity to brief the issues. Although California law contemplates that writ proceedings will move more quickly than appeals, that is not always the case in practice because the Courts of Appeal are under no statutory obligation to quickly resolve writ proceedings.

B. Procedure

1. To whom is the appeal made?

An appeal or petition for extraordinary relief from a superior court proceeding, other than a limited civil proceeding, should be made to the appropriate district of the California Court of Appeal. See Cal. Code Civ. Proc. §§ 904.1, 1085, 1103. An appeal or petition for extraordinary relief from a limited civil proceeding or a municipal court order should be made to the appellate division of the superior court. See Cal. Code Civ. Proc. §§ 904.2, 1085, 1103; Cal. Rule Ct. 8.490. An appeal is initiated by filing a “Notice of Appeal” with the court that entered the order being appealed – generally the Superior Court. See Cal. Rule Ct. 8.100. However, a petition for extraordinary relief should be filed directly with the court from which relief is sought – generally the Court of Appeal. See Cal. Code Civ. Proc. § 1107.

2. Stays pending appeal

The reporter may seek a stay pending the appeal by request within the petition for writ of mandamus, or by filing a separate petition for writ of supersedeas. See Cal. Rule Ct. 8.112. If the stay request is contained in a separate petition for writ of supersedeas, the petition must be filed in the court in which the writ petition is pending, be verified, and contain a supporting memorandum of points and authorities. Seeid. If the stay request is contained within the petition for writ of mandamus, the document must “[p]rominently display the notice ‘STAY REQUESTED.’” Cal. Rule Ct. 8.116. See generally Cal. Rule Ct., Rules 8.112, 8.116 for other specific formatting and content requirements.

The California Supreme Court directed trial and appellate courts to stay any contempt order if a colorable argument can be made on appeal. SeeNew York Times Co. v. Superior Court, 51 Cal. 3d 453, 460, 796 P.2d 811, 273 Cal. Rptr. 98 (1990). The Supreme Court held that,

To avoid confinement under a judgment of contempt that may subsequently be set aside, a trial court should stay its judgment of contempt to allow the contemnor newsperson sufficient time in which to seek writ relief if the trial court believes there is any colorable argument the newsperson can make against the contempt adjudication. If the trial court nevertheless declines to issue a stay, a reviewing court should do so pending its decision whether to issue an extraordinary writ.

Id. Consequently, a stay of the trial court order should issue under most circumstances.

3. Nature of appeal

California’s rules do not allow for a direct appeal of a civil contempt order. See Cal. Code Civ. Proc. § 904.1. Consequently, if a contempt order is entered, the reporter should file a petition for extraordinary relief, seeking a writ of mandate or prohibition to the trial court, pursuant to California Code of Civil Procedure §§ 1084 or 1103.

4. Standard of review

The standard of review of a contempt order is not clear. One California court held that the standard of review is “whether there is substantial evidence to sustain the order.” In re Willon, 47 Cal. App. 4th 1080, 1089, 55 Cal. Rptr. 2d 245 (1996) (citations omitted). That court explained that the contempt order will be sustained only if the record “demonstrate[s] on its face the existence of all the necessary facts upon which jurisdiction depended.” Id. However, the California Supreme Court declined to decide whether the appellate court is required to exercise its independent judgment in reviewing an order of contempt because of the constitutional interests at stake. SeeDelaney v. Superior Court, 50 Cal. 3d 785, 816, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). It did note, however, that “Article I, section 2(b) makes no provision for such a standard of review” and that no authority had been cited to support such a review. Id.; see also People v. Vasco, 131 Cal. App. 4th 137, 152, 31 Cal. Rptr. 3d 643 (2005) (also declining to adopt a standard of review for shield law cases).

In reviewing an order denying a protective order, one California court held that controversies that turn on questions of statutory interpretation are subject to independent review, and that when the controversy “implicates interests in freedom of expression” the court must “review all subsidiary issues, including factual ones, independently in light of the whole record.” O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1456, 44 Cal. Rptr. 3d 72 (2006) (emphasis in original). That court exercised the equivalent of de novo review because the case was decided on “a paper record fully duplicated” in the Court of Appeal (as opposed to “controverted live testimony,” which would warrant deference). Id.

The O’Grady court enunciated a different standard for evaluating application of a reporter’s privilege under the free press guarantees of the First Amendment or the California Constitution – “the relatively searching ... constitutional fact review.” O’Grady, 139 Cal. App. 4th at 1466-67 (internal quotes omitted). This requires the court to independently review any factual findings. Thus:

Facts that are germane to the First Amendment analysis must be sorted out and reviewed de novo, independently of any previous determinations by the trier of fact.... And the reviewing court must examine for itself the statements in issue and the circumstances under which they were made to see ... whether they are of a character which the principles of the First Amendment ... protect. We must therefore make an independent examination of the entire record ... , and determine whether the evidence in the record supports the factual findings necessary to sustain the trial court’s order denying a protective order.

Id. (internal quotes, citations omitted). It would appear that under this standard, even factual findings deriving from live testimony would be reviewed de novo to the extent they impact on constitutional free press rights.

5. Addressing mootness questions

The possibility of mootness often will arise in criminal proceedings, when the trial proceeds without the reporter’s testimony. However, the issues frequently will remain alive because the contempt order is outstanding and the reporter will be subject to punishment if the order is not reversed. E.g., In re Willon, 47 Cal. App. 4th 1080, 1088 n.2, 55 Cal. Rptr. 2d 245 (1996). The Willon Court asserted that “[e]ven if the trial court were to withdraw its decision to punish petitioners, this case would not be moot, since it presents important public issues that are ‘capable of repetition, yet evading review.’” Id. (citations omitted).

IX. Other issues

A. Newsroom searches

California Penal Code § 1524(g) provides that “[n]o warrant shall issue for any item or items described in Section 1070 of the Evidence Code.” This statute would seem to flatly forbid the issuance of a search warrant to obtain confidential source information or unpublished information from a news organization.

Under different circumstances, a California Court of Appeal affirmed a trial court’s seizure of a roll of film taken in open court. SeeMarin Independent Journal v. Municipal Court, 12 Cal. App. 4th 1712, 16 Cal. Rptr. 2d 550 (1993). California Rule of Court 1.150 prohibits photography of courtroom proceedings without a prior written order. In this case, the photographer took pictures of a suspect in open court without written permission, and the judge ordered that the film be seized. Id. at 1716. The Court of Appeal upheld the seizure, concluding that it was not a prior restraint on speech. Id. at 1718-19. The Court asserted, however, that even if it was a prior restraint, it was permissible because the photographs had been obtained illegally.

B. Separation orders

No statutory or case law addresses the question of whether a court can restrict courtroom access for a reporter who is listed as a witness but also trying to cover the trial. In an analogous circumstance, the Court of Appeal rejected a gag order against a newspaper that was a defendant in the case and also attempting to report on the trial testimony. Freedom Communications, Inc. v. Superior Court, 167 Cal. App. 4th 150, 83 Cal. Rptr. 3d 861 (2008). The Court held that “the danger the trial court sought to avert by its prior restraint [t]here – the risk that witnesses in a civil trial might be influenced by reading news reports of the testimony of other witnesses – cannot possibly justify the censorship imposed.” Id. at 153.

C. Third-party subpoenas

There is no statutory or case law addressing whether a reporter has the right to challenge a subpoena issued to a third party in an attempt to discover the reporter’s unpublished information. However, California law generally prohibits the release of personal information without notice to the affected party. See Cal. Code Civ. Proc. § 1985.3 (requiring notice before “consumer’s personal records” may be subpoenaed); Cal. Code Civ. Proc. § 1985.6 (requiring notice before employment records may be subpoenaed). In addition, telephone records may not be released without the consumer’s consent. Cal. Code Civ. Proc. § 1985.3(f).

The California Constitution includes a “right of privacy,” which has been extended to include a variety of personal information, from financial records to classroom discussions. E.g., Valley Bank of Nevada v. Superior Court, 15 Cal. 3d 652, 542 P.2d 977, 125 Cal. Rptr. 553 (1975); White v. Davis, 13 Cal. 3d 757, 533 P.2d 222, 120 Cal. Rptr. 94 (1975). In Valley Bank of Nevada, the Supreme Court held that when a bank receives a subpoena seeking personal information about one if its depositors,

[T]he bank must take reasonable steps to notify its customer of the pendency and nature of the proceedings and to afford the customer a fair opportunity to assert his interests by objecting to disclosure, by seeking an appropriate protective order, or by instituting other legal proceedings to limit the scope or nature of the matters sought to be discovered.

15 Cal. 3d at 658. This holding has been applied in other areas and arguably would require notice to the reporter before the third party may disclose any of the reporter’s personal information. E.g., Sehlmeyer v. Department of General Srvcs., 17 Cal. App. 4th 1072, 21 Cal. Rptr. 2d 840 (1993) (notice must be given before physicians, psychotherapists and attorneys can be required to disclose information about person who initiated administrative proceedings against current psychologist); Olympic Club v. Superior Court, 229 Cal. App. 3d 358, 282 Cal. Rptr. 1 (1991) (notice must be given before private club released names of applicants rejected during past decade).

D. The source's rights and interests

In CBS, Inc. v. Superior Court, 85 Cal. App. 3d 241, 250, 149 Cal. Rptr. 421 (1978) ), disapproved on other grounds, Delaney v. Superior Court, 50 Cal. 3d 785, 797 n. 6, 789 P.2d 934, 268 Cal. Rptr. 753 (1990), the court held that the privilege was waived when the reporter’s previously confidential sources testified in open court. The court reasoned that “[s]ince this information is now a matter of public record, it is difficult to see how the production of tapes which will merely confirm – or at worst very slightly amplify – what has already been revealed, will materially erode the vicarious interest in confidentiality asserted by CBS.” Id. More recently, a court questioned whether the privilege applies where the defendant is both the source of the information and the person seeking its disclosure. People v. Vasco, 131 Cal. App. 4th 137, 152 n.3, 31 Cal. Rptr. 3d 643 (2005). The court considered the issue “troublesome,” opining that in this circumstance, “there is no risk the reporter’s source (the defendant) will complain her confidence has been breached. … Nor is the separate policy of safeguarding press autonomy in any way compromised. … And, where the defendant is the reporter’s source of information, there appears no reason to assume disclosure would hinder the reporter’s ability to gather news in the future.” Id. (citations omitted). It held, however, that under Delaney “we may only consider this factor in the balancing stage.” Id. Because defendant did not meet Delaney’s threshold test, the court concluded that “this factor plays no part in the equation.”